Charges Dismissed Against Former Child Sex Crimes Prosecutor For Lack Of Actual Minor In FBI Sting

There is an interesting ruling out of Mobile, Alabama where former
child sex crimes prosecutor, Steve Giardini, was charged with
solicitation of a minor over the computer. Special Judge Gaines
McCorquodale dismissed the charge on a key missing element under the
statute: an actual victim. Since Giardini was speaking with an
undercover officer posing as a 15-year-old girl, McCorquodale ruled that
there was no victim as required under the language of the statute for
child enticement. Essentially, no child, no enticement, no charge.

According to the FBI agent,
the agent assumed the identity of a teenage girl named Daphne. The
agent said in the affidavit Giardini said that he wanted to meet the
girl and that the two discussed the importance of not getting caught by
her mother. This included conversations over the phone with the agent
using a voice changing technology. The agent said that Giardini asked
the girl if she had ever had sex and invited her to use the swimming
pool and hot tub at his home and that they could go to the beach at
Perdido Key in Florida. The agent also said that Giardini asked her to
take off her clothes and masturbate so that he could hear as well as
asking her to take a topless photo once her mother was gone.

Giardini had already been tried on the charges, which resulted in a hung jury. The split was not particularly close — 7-5.

McCorquodale noted that “[t]he issue becomes whether or not that
statute can be applicable to an undercover agent purporting to be a
fifteen (15) year old female child.” A state appellate court had
previously dismissed a case based on the same problem and the judge
followed the same reasoning. He also dismissed a related charge of
solicitation of obscene matter of a child on the same grounds. He found
that “the state is faced with the issue that there is no actual victim
in the case. As a result, there was no actual production of any
photograph or attempted production of any photograph of breast nudity of
a child under the age of sixteen (16). That evidence is undisputed
here.”

Giardini was a 20-year veteran who was prosecuting child sex offenses
when he was nabbed in the sting operation. He was accused of having an
almost four-month-long correspondence with the “child”. He resigned
after the FBI searched his home.

The question is whether Giardini will now be charged by federal
prosecutors. Like other areas, Congress has created dual state-federal
crimes for online solicitation. Many civil libertarians have objected in
the past that acquittals in state court are followed by basically the
same charge in federal courts. Yet, federal courts have refused to
enforce double jeopardy protections in such cases.

This would be a bit different since, while tried earlier to a hung jury, Giardini secured dismissal on a legal question.

Giardini’s lawyer argues that the ex-prosecutor had long
conversations with many other counterparts, mostly adults. He insists
that a request for a topless photo was unclear — an argument supported
by the earlier hung jury. Yet, it is not clear, if the agent is telling
the truth, how many adults were asked to avoid their mothers and discuss
whether they were virgins.

The question is now whether such allegations should strip Giardini of
his bar license even without federal charges. If the agent’s affidavit
is to be believed, Giardini encouraged a 15-year-old girl to avoid her
mother, take topless photos, and visit him without parental consent. If
the bar believes the allegations, I would find it hard to be convinced
that he could serve as an attorney and officer of the court.